A GOP-backed bill meant to make changes to West Virginia’s ban on certain colorful artificial dyes failed to make it to the governor’s desk this year. For now, the food dye ban – one of the first of its kind in the country – remains temporarily blocked by a federal judge.
While the bill aimed at tweaking the artificial food dye ban passed the House of Delegates, it faced tougher scrutiny in the Senate, where members wanted to exempt West Virginia-made popsicles, pepperoni rolls and more from the synthetic food dye regulations.
Ultimately, the Senate parked the measure, which faced seven amendments aimed at exempting West Virginia food makers and products, in the final days of session.
Sen. Eric Tarr, R-Putnam, thought it wasn’t right for lawmakers to overstep federal food regulations. And, he felt it could hurt West Virginia-based food makers.
“It is a terrible look for attracting industry to West Virginia, and especially when we already have a lot of that industry here in West Virginia,” said Tarr, who sponsored amendments to the bill. “That sends a terrible message across the country and in the world about coming to West Virginia.”
In 2025, lawmakers passed a bill banning the use of seven synthetic red, blue, green and yellow dyes in food items and drugs for sale in West Virginia beginning Jan. 1, 2028. Lawmakers also banned the use of these dyes in public school meals beginning this school year.
Republicans behind the measure said they were unnecessary and harmful, and they’ve linked them to behavioral issues in children. The legislation also prohibits the use of butylated hydroxyanisole and propylparaben in food and drugs.
Opponents of the measure warned that sweeping food dye ban, which would be an outlier in the country, would drive up grocery prices.
Gov. Patrick Morrisey signed the measure into law, prompting U.S. Health and Human Services Secretary Robert F. Kennedy Jr. to praise state leaders for the food policy change. Kennedy wants to phase out all petroleum-based synthetic dyes from the nation’s food supply as part of the Trump administration’s broader Make America Healthy Again initiative.
House Bill 2354, which became law in 2025, banned the use of Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2 and Green No. 3 in food items and drugs for sale in West Virginia beginning in 2028.
But, the pending roll out for the statewide food dye ban was temporarily blocked by the U.S. District Judge Irene Berger of the Southern District of West Virginia. The International Association of Color Manufacturers sued West Virginia health and school leaders, saying that the state Legislature acted unlawfully by asserting their power over the U.S. Food and Drug Administration, which has the authority to make food safety decisions.
Berger said the law was likely unconstitutionally vague because it failed to provide adequate notice or standards to prevent arbitrary enforcement by the West Virginia Department of Health. The judge’s order did not apply to the part of law banning the use of certain artificial food dyes in school meals.
Changes to food dye ban doesn’t get vote in Senate
During the recent legislative session, House Health Chair Evan Worrell, R-Cabell, sponsored a bill to make some adjustments to the food dye ban following the judge’s order.
“I think our law is solid, but I want to clarify: This law doesn’t take effect or didn’t plan to take effect until January 1 of 2028, still two years away,” Worrell told MetroNews Talkline ahead of the session. “So this allows us to come back during the legislative session, and look at this law and take into consideration this judge is ruling, and how can we effectively, you know, make sure that it does pass muster for what this judge had to say.”
House Bill 4852 as introduced said that a list of certain colorful synthetic dyes were “poisonous or injurious to health” and demonstrated through peer-reviewed scientific evidence to cause risk or harm to human health.
The measure passed the House with a vote of 77-18. Del. Mike Hornby, R-Berkeley was one of the no votes.
“I’m not a big fan of us telling people what to do –especially adults – with their body,” Hornby said. “I think people need to make better choices. I don’t think we need the government telling us or forcing us to make better choices.”
He continued, “I think it was also too premature. With every administration, there’s going to be changes. I think we should follow the federal guidelines, instead of trying to get out ahead.”
Tarr wanted the bill to face tougher opposition in the Senate, citing concerns that the Food and Drug Administration hadn’t said the prohibited food dyes and chemicals were harmful in the quantity consumed in a normal diet.
“ [Then] we go in those areas that tend to be economically stressed in the first place, and say, ‘We’re going to now take food off the shelves. And not only take food off the shelves, if it stays on the shelf, we’re gonna make it more expensive for you,’ That was what that bill did,” Tarr said. “You have manufacturers that supply hundreds of millions of people in the United States. They’re not going to change their manufacturing around West Virginia.”
“I was going to filibuster this thing to death on every amendment,” he added. The Senate sent the measure to the Rules Committee on March 12, and it wasn’t taken up by session’s deadline.
Worrell did not return a request for comment for this story.
The court case over the 2025 bill banning certain food dyes continues, and Berger’s injunction temporarily blocking enforcement of most of the bill remains in place.
The West Virginia Attorney General’s Office tried to dismiss the case earlier this year, but the request was denied by the judge. The case is stayed pending an appeal to the 4th circuit regarding Berger’s injunction.
Morrisey said in December that, “West Virginia will continue to defend its authority to protect the health and well-being of our citizens, especially our children … [We] will continue to press forward with our efforts to get harmful crap out of our food supply.”
Ziegenfelder, manufacturer of “Twin Pops” located in Wheeling, recently announced that they’ll use natural color sources like radishes and spirulina in light of the changing food regulations. The natural colors are more expensive than the synthetic dyes, The Intelligencer reported.
Senate’s school meal changes stalled
Lawmakers also considered banning an additional 23 food additives, including aspartame and aloe vera, in school meals. Supporters of the measure argued that it could help the state’s childhood obesity problem.
Senate Bill 745 required that no more than 5% of daily calories served in a school nutrition program may come from added sugars, which concerned some lawmakers that it could ban chocolate milk at lunchtime.
The Senate passed the bill but it didn’t make it out of the House Education Committee by the legislative deadline.
This article originally appeared on West Virginia Watch.
West Virginia Watch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com.
